Labor of Love: Law Professors' Study Provides New Weapons in Fighting Job Discrimination. (Top 100: 2001-2002)

Article excerpt

Ruth and Alfred "Al" Blumrosen have worked for almost 50 years to improve labor conditions in this country and around the world. And despite recently buying a beach house in Naples, Fla., the couple, law professors at Rutgers University in Newark, N.J., since the 1950s, are not quite going into full retirement. In fact, they have published the first comprehensive study of employment discrimination throughout the United States, yielding results the Blumrosens believe point to an easy way for the government to reduce job discrimination.

Their most recent study found that 75 percent of all "intentional discrimination" in employment occurs in just 20 percent of the industries surveyed. Legally, intentional discrimination occurs when an employer takes into account race or sex in making an adverse employment decision, even as one of many factors. Showing that a company or owner employs minorities or women far below the average rate that other employers do is evidence that the employer is purposefully discriminating, shifting the burden to the employer to prove this is not the case.

The research found that two million minorities and women in 1999 were affected by "intentional discrimination" in the workplace--marking the first time research has quantified this type of discrimination. It also found that approximately eight million minorities held upper-level jobs in 1999.

The study's most notable findings are both positive and negative, Al notes. While Blacks and Hispanics held an increasing share of managerial and upper-level jobs in the period between 1975-1999, their overall rate of employment increased at a slower rate than the rest of the population.

The Blumrosen study provides a powerful new weapon to those trying to show in court that they were discriminated against. It compares the defendant companies' employment of minorities and women to the average employment rates at a similar company. If the firm being sued employs a number of women and minorities that is 2.5 standard deviations below the average, the Blumrosen study shows that there is a 95 percent chance this is the result of "intentional discrimination."

Government measures of intentional discrimination are limited by several factors. Government contractors with less than 50 employees and other firms that don't work for the government don't have to report the racial makeup of their staff. Also, the government doesn't ask for a breakdown of employees by age, so age discrimination is not tracked.

Even though the U.S. government collects employment data from government contractors with more than 50 employees, it only releases statistics of overall intentional discrimination. The Blumrosens argue that the government could prod the companies with the poorest employment records to improve their records by identifying them and telling them where they stand relative to their peers.

"Then it will be up to the employers to decide what to do," Al says. "They could decide to do nothing ... or they could decide to be more proactive and say, 'If everyone else can pull people from this labor force, so can we.'"

It is a matter of public record that Al Blumrosen is an expert on this topic. The U.S. Supreme Court relied on his work in setting the standard for intentional discrimination in a 1977 ruling, reaffirming the same standard in a 1986 case.

"There is a group that has been pushing the idea that the use of any number is a quota, and that's simply not the case," Ruth says. Supreme Court Justice "Sandra Day O'Connor said that there's a difference between preferences and a quota."

The government's stance on enforcing discrimination law has varied over the years, says Al.

"The courts took the widest possible view of how to interpret the law in 1965 and for 10 years they were very supportive," he says. "That support began to waver in the late '70s at the Supreme Court level, but by then the legal system had incorporated some of those views. …